431 U.S. 943 (1977)

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U.S. Supreme Court

NEW YORK v. EARL , 431 U.S. 943 (1977)

431 U.S. 943

State of NEW YORK
Robert EARL.
No. 76-1116.

Supreme Court of the United States

May 31, 1977

Rehearing Denied Oct. 3, 1977.

The petition for a writ of certiorari is denied.

See 434 U.S. 881.

Mr. Chief Justice BURGER, with whom Mr. Justice BLACKMUN and Mr. Justice REHNQUIST join, dissenting.

Shortly after midnight on September 13, 1970, Jessee Carter, an off- duty New York City police officer, was driving through the South Jamaica section of Queens on his way home from a movie. His suspicion was aroused when he observed two individuals, later identified as respondent and a companion, 'crouched' behind a parked automobile in a partially deserted, unfenced hotel parking lot. The two were approximately 15 to 20 feet from Carter, and he noted that respondent was holding an object in his upraised hand. Respondent's companion was also holding an object, which Carter saw him

Page 431 U.S. 943 , 944

place in his rear trouser pocket. Carter was unable to identify either of these objects.

The officer then drove his automobile onto the parking lot, stopping approximately two car lengths from the suspects. He turned off his headlights and observed them briefly. He then turned his lights back on and drove his car towards the men. He jumped from the car with his badge in one hand and his drawn revolver in the other, and shouted 'freeze police officer.'

Respondent rose from his crouched position, and Carter saw him drop the object he had been holding which turned out to be a fully loaded .38 caliber revolver. Officer Carter immediately placed the men under arrest, and proceeded to search them. He found six .38 caliber bullets in respondent's pocket and a loaded revolver in the pocket of his companion. Respondent was charged with possession of weapons and dangerous instruments and appliances. His motion to suppress the handgun as evidence was denied by the New York Supreme Court Criminal Term. Respondent then pled guilty to the charge and as permitted by New York law, 1 he appealed his conviction, charging that the motion to suppress should have been granted.

The Supreme Court Appellate Division affirmed respondent's conviction in an opinion joined by four Justices. One Justice dissented. The court first determined that Officer Carter 'was clearly possessed of such information as would warrant a 'founded suspicion' that criminal activity was 'afoot'.' People v. Earl, 50 A.D.2d 289, 293, 377 N.Y.S.2d 649, 653 ( 1975). He was therefore held entitled to make further inquiry and to take such precautions as reasonably necessary for his safety. The court further held that Officer Carter's action exhibiting his badge and gun and asserting his authority was reasonable under the circumstances. Accordingly, it concluded that respondent's handgun was properly seized and [431 U.S. 943 , 945]

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